An advertising sign no more?

Above the roof of the building at 500 Flinders St there is a large sign currently advertising a car.

The sign structure has been there since the 1970s (though it has not always displayed advertising signage). In a recent VCAT case, Octopus Media Pty Ltd v Melbourne CC [2016] VCAT 2101, the tribunal ruled the sign had no right to exist.

To erect certain types of advertising signs you need a planning permit. State government regulations govern advertising sign controls, though councils can have local policies to supplement the state government rules.

The types and sizes of signs allowed depend on the type of zone they are in. The rules are complex and confusing. A former planning minister appointed an advisory committee in 2008 to review the rules and it made recommendations to simplify them. But nothing was done.

The tribunal hearing about the 500 Flinders St sign was a very complex case that was heard by a deputy president of the tribunal and leading planning barristers represented the council and permit applicant. This is an indication of the amount of revenue big advertising signs can generate.

The owners wanted to replace the existing structure with a new electronic sign. It was claimed they had an “existing use” right to display the sign and did not need a permit to make the minor works to convert it into an electronic sign. In case the tribunal did not agree, they said they would apply for a permit for the minor works.

The council was not only opposed to the new electronic sign but claimed that the permit for the original sign had expired.

The owners sought two outcomes from the tribunal hearing: firstly, a declaration that they had existing use rights and that the council could not compel the removal of the sign; and secondly, that council be required to grant the permit for the sign.

One of the laws to prove an existing use right is that there must be 15 years continuous use. This was a critical issue in this case.

On the first matter, the tribunal said that the onus of establishing the existing use right fell on the owners, not the council. It found that, on the balance of probabilities, it had failed to do so. That is, it failed to prove that the sign lawfully existed (at least beyond March, 2010).

Crucially it found that first, in December 2008, during the 15-year period, there were two letters from the council that clearly and unambiguously gave written direction for the display of the advertising sign to cease and for the structure to be removed.

Secondly, the use for the purpose of an advertising sign was not continuous through this period, given that no advertising was displayed from 2011 to 2015.

As to the application for a permit to undertake the works to convert the structure into an electronic advertising sign, the tribunal supported the council’s position that it has a clear local policy to avoid large-scale billboards and other forms of promotional signs on the Melbourne skyline when viewed from the Yarra River corridor.

The tribunal concluded the sign would be obtrusive in this viewline.

Some two months after the tribunal’s decision the sign still exists. It seems council will have to take enforcement action to get the sign removed.